Authority's Decision and Opinion of Chairman Cabaniss
[ v59 p564 ]
59 FLRA No. 99
SOCIAL SECURITY ADMINISTRATION
MEMPHIS, TENNESSEE
(Agency)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 3438
(Union)
0-AR-3719
_____
DECISION
January 9, 2004
_____
Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope and Tony Armendariz, Members [n1]
This matter is before the Authority on exceptions to an award of Arbitrator Edward P. Goggin filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator ordered the Agency to pay employees at one and one-half times their regular hourly compensation for any involuntary compensatory time hours they worked during fiscal years 1999 through 2001. For the reasons that follow, we modify the award to reduce the amount of overtime pay where compensatory time off has already been used, and deny the remainder of the Agency's exceptions.
The Agency allocated a certain amount of paid overtime hours to the Memphis office to be distributed to employees at the discretion of the District Manager. Certain employees worked overtime and were compensated with overtime pay. Other employees worked overtime and were not compensated with overtime pay but instead received compensatory time off (comp time). The Union filed a grievance alleging that the Agency was "forcing employees to choose compensatory time in lieu of overtime" in violation of the law and the parties' collective bargaining agreement. Award at 2.
The grievance was not resolved and was submitted to arbitration. The Arbitrator stated the issue as follows:
Did the Agency violate the overtime provisions of Article 10, Section 3 of the National Agreement and/or 5 CFR 551.531 when it only permitted certain employees, in the Memphis office, to work paid overtime when only compensatory time off was available to compensate the remaining employees for the overtime hours which they worked?
Id. at 3. [n2]
The Arbitrator found that during fiscal years 1999 through 2001 a substantial number of hours of paid overtime was worked, and that there was "no evidence submitted by the Agency which identified the employees who received paid overtime and/or evidence which identified the projects to which those employees were assigned." Id. at 15-16. He also found that when certain employees requested paid overtime they were told by management that none was available for them, and that if they "needed to work overtime to clear their desks, they would have to work [c]omp [t]ime." Id. at 17. Further, the Arbitrator found that the employees were not advised that comp time could be granted in lieu of overtime pay only upon their request, and that "[u]nder the Agreement and 5 C.F.R. [§] 551.531, an employee can[]not be forced or intimidated into working [c]omp [t]ime." Id.
In his award, the Arbitrator credited testimony from several employees who had worked a considerable amount of comp time but were never offered overtime pay. The Arbitrator relied upon the employees' testimony that in order to effectively complete their work, it was necessary to work beyond their scheduled work day. The Arbitrator also cited a memorandum that management distributed to all employees in April 2000 regarding the need to work comp time to process work. [n3] [ v59 p565 ]
Among the evidence relied on by the Arbitrator was testimony from an employee that employees "didn't know that we had a choice. . . . if they offered comp time . . . you knew you needed to do that in order to keep up with your job. If we didn't, we would hear it from our supervisors." Id. at 7. The Arbitrator also cited testimony from another employee who stated that she was told by her supervisor that "[`]if you want to work on your desk and get the work out, all I'm going to give you is comp time[']" and that "[`]. . . the work on your desk needs to be out. Get it out however you get it out.['] And the only way that you could get it out was if you stayed after hours and worked comp time, even if you asked for overtime." Id. at 12-13. In sum, the Arbitrator concluded that the comp time was "involuntary." Id. at 18.
As such, the Arbitrator found that the Agency violated the parties' collective bargaining agreement and 5 C.F.R. 551.321 "by the manner in which [the District Manager] allocated paid overtime." Id.
As a remedy, the Arbitrator ordered that "the employees of the District who requested, but were denied, paid overtime opportunities . . . be compensated at time and one-half (1 ½) for any involuntary [c]omp [t]ime they worked during the two and one-half (2 ½) year period." Id.
The Agency contends that the Arbitrator's award is contrary to law, is based on a non-fact, and provides an illegal remedy.
First, the Agency argues that the Arbitrator's award is contrary to law because it misapplies 5 C.F.R. § 551.531. Citing AFGE, Local 507, 58 FLRA 378 (2003), the Agency contends that in circumstances where there are no funds for overtime pay, the "act of volunteering, to the extent that it is not coerced, comes within the meaning of the phrase `at the request of the employee,' as contemplated by 5 CFR § 551.531(a)." Exceptions at 12. Here, the Agency argues, the employees were merely offered a choice of overtime work for comp time or no overtime work at all. According to the Agency, the Arbitrator "appears to have concluded that allowing employees to work overtime for compensatory time off without giving them an option to work paid overtime was inherently coercive[.]" Id. As such, the Agency contends that the award is contrary to 5 C.F.R. § 551.531 as discussed in AFGE, Local 507.
Second, the Agency asserts that the award is based on a non-fact insofar as the Arbitrator found that the Agency failed to identify or explain the discrepancy in overtime assignments. The Agency claims that the record reflects testimony from the District Manager that the allocated overtime was distributed according to the workload and the requisite experience of the employee.
Third, the Agency asserts that the Arbitrator's award interferes with management's right to assign work by requiring that overtime work be distributed equally among employees. In addition, the Agency argues that the parties' collective bargaining agreement does not require that overtime be assigned and distributed to all employees. In this regard, the Agency contends that the award creates a limitation on management rights not found in the agreement.
Finally, the Agency asserts that, pursuant to 29 U.S.C. § 216(b), any appropriate remedy need only compensate employees for unpaid overtime. [n4] As the employees already received comp time for the overtime hours worked, the Agency argues that the value of the overtime pay must be reduced by the value of compensatory time already used.
The Union claims that the Agency's exceptions are an attempt to relitigate the case presented to arbitration. The Union asserts that the Agency's reliance upon AFGE, Local 507 is misplaced, and that this case is distinguishable on its facts. According to the Union, the language of § 551.531 clearly provides that the only circumstance in which comp time can substitute for overtime pay is when an employee so requests.
In addition, the Union disputes the Agency's contention that the award is based on a non-fact. The Union claims that the Arbitrator's findings regarding the procedure for the granting of comp time were based on the evidence presented during the hearing.
Further, the Union asserts that the Arbitrator's award does not affect a management right. The Union argues that the award does not involve or address management's right to assign and distribute overtime. [ v59 p566 ]
Finally, the Union argues that the comp time was involuntary and the employees are entitled to the "time and one-half" remedy. In the alternative, the Union argues that the award should be remanded to the Arbitrator for clarification.
When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. Id.
The Agency's reliance upon AFGE, Local 507 is misplaced. In AFGE, Local 507 the Authority upheld the arbitrator's finding that the employees were not coerced into accepting compensatory time off in lieu of overtime when they were offered the option of changing their work schedules so as to avoid overtime pay or accepting compensatory time off for work performed on an overtime basis. AFGE, Local 507, 58 FLRA at 380-81. The Authority found that "[i]n these circumstances. . . the Arbitrator did not err in finding that the Agency did not coerce, intimidate, or threaten the employees into accepting compensatory time for overtime." Id. at 381. The Authority denied the exception based on the arbitrator's factual findings that there was no evidence of coercion and that the employees main motivation for choosing compensatory time off was personal convenience.
In this case, however, the Arbitrator expressly found that the employees "worked involuntary [c]omp [t]ime." Award at 19. The Arbitrator found that the employees were compelled to work beyond their regularly scheduled work day based on the size of the workload and pressure by their supervisors to get the job done. Given the extent to which the Arbitrator relied upon the testimony of the employee witnesses, it follows that the finding of coercion was based upon his conclusion that the employees in this case were not given an option to accept overtime work for compensatory time off or no overtime at all.
The Arbitrator found that "[u]nder the Agreement and [5 C.F.R. § 551.321], an employee can[]not be forced or intimidated into working [c]omp [t]ime" and that "the evidence and testimony provided by the Union clearly demonstrates that the District Manager, in the Memphis District Office, violated the AFGE/SSA National Agreement and [5 C.F.R. § 551.321], by the manner in which he allocated paid overtime." Award at 17-18.
Here, unlike in AFGE, Local 507, the Arbitrator found that there was in fact evidence presented that the employees were coerced into accepting comp time off in violation of the parties' collective bargaining agreement and 5 C.F.R. § 551.321. Accordingly, as the Agency does not demonstrate that the award is inconsistent with § 551.321, we deny the exception.
Where an agency asserts that an arbitrator's award violates management's rights set out in § 7106(a) of the Statute, the Authority first determines whether the award affects those rights. See United States Small Business Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the two-prong test set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). If the award does not affect a management right, then the BEP analysis is not required. See United States Dep't of the Navy, Norfolk Naval Shipyard, Portsmouth, Va., 55 FLRA 1103, 1105 (1999).
Nothing in the award requires the Agency to equally assign and distribute paid overtime to all of its employees. Thus, the award does not preclude the Agency from exercising its rights under the Statute. As the Agency does not demonstrate that the award affects a management right, we deny the exception.
To establish that an award is based on a non-fact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at hearing. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). [ v59 p567 ]
The Agency's non-fact assertion is based on the Arbitrator's evaluation of the evidence regarding the manner in which the overtime hours were allocated and which employees received paid overtime. However, this evidence was disputed at the hearing and discussed at length throughout the award. As such, the Arbitrator's finding cannot be challenged as a non-fact. See, e.g., United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 56 FLRA 498, 502 (2000).
With respect to the remedy portion of the award, we agree with the Agency's assertion that, to the extent that employees have already used their earned comp time, the award of overtime pay must be reduced consistent with 29 U.S.C. § 216(b). See 29 U.S.C. § 216(b) (employer in violation of overtime provisions liable for unpaid overtime). See also United States Dep't of the Navy, Naval Sea Systems Command, 57 FLRA 543, 547-48 (2001) (in situations in which compensatory time off under title 5 was granted in error, the appropriate remedy consists of the payment of overtime pay reduced by the value of compensatory time off). Accordingly, we find that this portion of the award is deficient and modify the award to reduce the amount of overtime pay awarded by the Arbitrator by the value of the compensatory time off already used. [n5]
We modify the award consistent with the above, and deny the remaining exceptions.
I write separately to address the Agency's contrary to law (5 C.F.R. § 551.531) exception. While there may indeed have been some employees who voluntarily chose to work for compensatory time, the Arbitrator made an express finding of fact to the contrary, i.e., that the employees worked involuntary compensatory time. As those findings of fact were not challenged, the Agency has effectively estopped its contrary to law exception. [ v59 p568 ]
ARTICLE 10
HOURS OF WORK, FLEXTIME, ALTERNATE WORK ARRANGEMENTS AND CREDIT HOURS
Section 3-General Overtime Provisions
A. Overtime shall be distributed to bargaining unit employees whose performance is fully successful.
B. Overtime shall not be distributed or withheld as a reward or penalty.
...
D. Employees covered by both the Fair Labor Standards Act and Title 5 U.S.C. shall receive overtime compensation in accordance with whichever benefit is greater.
E. Employees covered by Title 5 CFR, when approved by management, can accrue and use compensatory time. When feasible, the employer shall grant such an employee's request for compensatory time rather than payment for overtime. An employee may request compensatory time off for hours of work spent in travel status that otherwise would qualify for overtime compensation, in accordance with the law, government-wide regulation and Agency policy.
Opposition, Ex. 1.
5 C.F.R. § 551.531. Compensatory time off.
(a) At the request of an employee who is not exempt under subpart B of this part, the head of an agency (or designee) may grant compensatory time off from an employee's tour of duty instead of payment under § 551.501 for an equal amount of irregular or occasional overtime work.
(b) At the request of an employee, as defined in 5 U.S.C. 2105, the head of the agency may grant compensatory time off from an employee's basic work requirement under a flexible work schedule under 5 U.S.C. 6122 instead of payment under § 551.501 of this part for an equal amount of overtime work, whether or not irregular or occasional in nature.
(c) An agency may not require that an employee be compensated for overtime work under this subpart with an equivalent amount of compensatory time off from the employee's tour of duty. An employee may not directly or indirectly intimidate, threaten, or coerce, or attempt to intimidate, threaten or coerce any other employee for the purpose of interfering with such employee's rights to request or not to request compensatory time off in lieu of payment for overtime hours.
(d) The head of an agency may fix time limits for an employee to request and take compensatory time off under this section. If compensatory time off is not requested or taken within the established time limits, the employee must be paid for overtime work at the overtime rate in effect for the work period in which it was earned under this subpart.
(e) The dollar value of compensatory time off when it is liquidated, or for the purpose of applying pay limitations, is the amount of overtime pay the employee otherwise would have received for the hours of the pay period during which compensatory time off was earned by performing overtime work.
Chairman Cabaniss' concurring opinion is set forth at the end of this decision.
Article 10, Section 3 of the parties' collective bargaining agreement and relevant portions of 5 C.F.R. § 551.531 are set forth in the Appendix to this decision.
The Arbitrator also included extensive detail regarding the number and percentage of overtime hours as compared to comp time hours worked each fiscal year. We note that such evidence is not relevant to our determination here, as nothing in 5 C.F.R. § 551.531 or the collective bargaining agreement requires that overtime hours be distributed equally among employees or that overtime and comp time hours be distributed in equal amounts.
29 U.S.C. § 216(b) states, in relevant part, that:
Any employer who violates the provisions of section 206 or section 207 . . . shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.
To the extent that employees have not already used their earned comp time, the Arbitrator's remedy of time and one-half compensation is left undisturbed.